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APR 29 2003
PATRICK FISHER
TENTH CIRCUIT
Clerk
No. 01-4057
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failure. 1
On May 26, 1999, employees for the Davis County School District met with
Melinda Sneddon, a caseworker for Utahs Division of Child and Family Services
(DCFS). The school district employees expressed concern for Rustys health and
provided several documents to DCFS. These documents included records
showing that in April 1998, Mrs. Roska told a teacher that Rusty had a hole in his
esophagus. In addition, the school nurse informed Sneddon that Mrs. Roska had
told her that Rusty had parasites in his intestines. Further, school officials
reported that Rustys healthy appendix had been removed at Mrs. Roskas
insistence. Finally, school officials reported that Rusty looked worse every day
and expressed concern that Rusty might die unless DCFS intervened. Further
investigation indicated that Mrs. Roska had allegedly claimed that Rusty suffered
from a disease that is only suffered by 10 or 100 people in the world.
Sneddon assigned Shirley Morrison, another caseworker, to investigate.
Morrison suspected that Mrs. Roska suffered from Munchausen Syndrome by
Proxy (MSBP), a disorder where an individual, usually a mother, inflicts
physical harm upon his or her children in order to gain the sympathy and attention
of medical personnel. E. Selene Steelman, Note,
A Question of Revenge:
Q:
Did you think on that day [the 27th] that if you didnt remove
him, he would die within a few days?
A [Morrison]: No.
Q:
Did you think that if you didnt remove him, he would die
within a week?
A:
No.
Q:
A month?
(continued...)
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Roskas home.
On May 28, 1999, Morrison and Sneddon met with an Assistant Attorney
General of Utah, Craig Peterson, who advised them that the facts supported
removing Rusty from the home. Morrison and Sneddon, accompanied by a police
officer, allegedly entered the Roska residence, without a warrant and without
knocking, and proceeded to remove Rusty. Before leaving, they were admonished
over the phone by Doctor Gooch that removal could destroy this family
emotionally and Rusty may never recover. Sneddon consulted with her
supervisor, Colleen Lasater, and then proceeded with the removal. Plaintiffs
contend that, while in the home, Sneddon pushed Rustys sisters, Maria Stewart
and Jessica Roska, as they attempted to comfort Rusty, and abused others in the
home, both physically and verbally. DCFS placed Rusty in a foster home, where
he allegedly was not given proper medication for his chronic pain.
At an initial shelter hearing on June 3, 1999, the juvenile court ruled that
Rusty should remain in protective custody. After additional evidence was
produced the next day, the court ordered that Rusty be returned to the Roskas
(...continued)
A:
I have no way to know that.
3
Q:
A:
Pretty sure.
-5-
care. The court also ordered the Roskas to permit substantial intervention by
DCFS in Rustys treatment.
On October 6, 1999, plaintiffs commenced this action under 42 U.S.C.
1983. The plaintiffs are Rusty Roska, Connie and James Roska (Rustys parents),
and Maria Stewart and Jessica Roska (Rustys sisters). The defendants are Craig
Peterson, Assistant Attorney General for the State of Utah; Melinda Sneddon, a
social worker with DCFS; Shirley Morrison, a social worker with DCFS; Colleen
Lasater, Sneddons and Morrisons supervisor; and Dan Choate and Darla
Rampton, DCFS placement workers who placed Rusty in a foster home. The first,
third, fourth, and fifth causes of action are directed against Peterson, Sneddon,
and Morrison and allege three Fourth Amendment violations
Amendment violation.
and a Fourteenth
-6-
Standard of Review
Farmer
v. Perrill , 288 F.3d 1254, 1259 (10th Cir. 2002). Qualified immunity is an
entitlement not to stand trial or face the other burdens of litigation.
Forsyth , 472 U.S. 511, 526 (1985). The privilege is an
Mitchell v.
Id. To determine
1996) (citation omitted). Order is important; we must decide first whether the
plaintiff has alleged a constitutional violation, and only then do we proceed to
determine whether the law was clearly established.
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In the district court, plaintiffs also alleged that defendants failed to knock
prior to entering the Roskas home. The plaintiffs did not, however, advance this
argument in their initial brief on appeal. Accordingly, defendants did not have an
opportunity to respond and the argument is not properly before us. The district
court on remand, however, may reconsider this aspect of plaintiffs Fourth
Amendment claim, in light of our discussion, infra.
7
-8-
unreasonable under the Fourth Amendment and therefore invalid unless it falls
within a specific exception to the warrant requirement.
Melendez , 263 F.3d 1155, 1162 (10th Cir. 2001). In this case, it is undisputed
that defendants failed to obtain a warrant before entering and searching the
Roskas residence. Thus, defendants actions were presumptively unreasonable
under the Fourth Amendment unless an exception to the warrant requirement
applies. Id. Defendants point to two possible exceptions to the warrant
requirement. We consider each in turn.
(1)
Exigent circumstances
United States
v. Wicks , 995 F.2d 964, 970 (10th Cir. 1993). The governments burden is
particularly heavy where the police seek to enter a suspects home.
981 F.2d at 1567 (quoting
Anderson ,
Id.
443, 470-71 (1971) (But where the discovery is anticipated, where the police
know in advance the location of the evidence and intend to seize it . . . [t]he
requirement of a warrant to seize imposes no inconvenience whatever, or at least
none which is constitutionally cognizable in a legal system that regards
warrantless searches as per se unreasonable in the absence of exigent
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circumstances.).
(2)
Within the last thirty years, courts have increasingly recognized certain
narrow circumstances that justify searches and seizures without reference to the
Fourth Amendments warrant clause or probable cause requirement. These are
situations in which the requirement of a warrant based upon probable cause is illsuited to achieving certain special needs of government, such as enforcing
school discipline, New Jersey v. T.L.O. , 469 U.S. 325, 333-40 (1985), allowing
administrative searches of the business premises of closely-regulated industries,
New York v. Burger , 482 U.S. 691, 700 (1987), and taking inventory of seized
items for caretaking purposes,
(1973).
In all special needs cases, the nature of the need addressed makes
particularized suspicion impossible or otherwise renders the warrant requirement
impractical. For example, in
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appreciable degree with the probation system, and would reduce the deterrent
effect that the possibility of expeditious searches would otherwise create. 483
U.S. 868, 876 (1987) (citation omitted). Similarly, the
surprise is crucial if the regulatory scheme aimed at remedying this major social
problem is to function at all. 482 U.S. at 710;
Executives Assn , 489 U.S. 602, 619 (recognizing that the special need
articulated must make the warrant and probable-cause requirement
impracticable before waiving those requirements). If a special need renders the
warrant requirement impracticable, we then balance the nature of the privacy
interest upon which the search intrudes and the degree of intrusion occasioned by
the search against the nature and immediacy of the governmental concern at
issue . . . and the efficacy of this means for meeting it.
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only a warrantless search, but also the removal of a child from his parents. In
such a case, the interest of the government in protecting the child must be
balanced against the interest of the parents in keeping the family together. Even
when blood relationships are strained, parents retain a vital interest in preventing
the irretrievable destruction of their family life. Santosky v. Kramer, 455 U.S.
745, 753 (1982). Measured against this parental interest, the states interest in
protecting children does not excuse social workers from the warrant requirement
of the Fourth Amendment.
b.
Plaintiffs claim that Sneddon and Morrison violated Jessica Roskas and
Maria Stewarts Fourth Amendment rights to be free of unreasonable use of force
by pushing them against a wall. Before addressing an unreasonable use of force
claim, we must examine the context in which the claim arises.
Austin v.
Hamilton , 945 F.2d 1155, 1158 (10th Cir. 1991) (We must first place the
objectionable events in this case somewhere along the custodial continuum
running through initial arrest or seizure, post-arrest but pre-charge or pre-hearing
custody, pretrial detention, and post-conviction incarceration; and then determine
what constitutional protection controls at which particular juncture.),
overruled
on other grounds , Johnson v. Jones , 515 U.S. 304 (1995); see also Metcalf v.
Long , 615 F. Supp. 1108, 1118-20 (D. Del. 1985) (noting that post-conviction
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claims for excessive force are brought under the Eighth Amendment).
Claims that state actors used excessive force deadly or not in the course
of a seizure are analyzed under the Fourth Amendments reasonableness standard.
Graham v. Connor , 490 U.S. 386, 395 (1989).
seizure occurred and that the seizure was unreasonable. Brower v. County of
Inyo, 489 U.S. 593, 599 (1989). A person is seized within the meaning of the
Fourth Amendment when a reasonable person would believe that he or she is not
free to leave.
indicates that Jessica Roska or Maria Stewart did not feel free to leave. Quite the
contrary, Sneddons alleged statement to get the f**k out indicates that they
were encouraged to leave. Hence, we cannot say they were seized within the
meaning of the Fourth Amendment.
A determination that plaintiffs were not seized within the meaning of the
Fourth Amendment does not end the inquiry, however. Substantive due process
analysis is appropriate in cases that involve excessive force where a specific
constitutional provision such as the Fourth or Eighth Amendment does not
apply. County of Sacramento v. Lewis , 523 U.S. 833, 843 (1998) ( Graham
simply requires that if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment, the claim must
be analyzed under the standard appropriate to that specific provision, not under
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C ONST .
Hannula v. City of
Lakewood , 907 F.2d 129, 131-32 (10th Cir. 1990). Force inspired by malice or by
unwise, excessive zeal amounting to an abuse of official power that shocks the
conscience . . . may be redressed under [the Fourteenth Amendment].
City of Truth or Consequences
Hewitt v.
express some doubt as to the need to push or swear at adolescent girls, use of
such force to move children who might be interfering with the removal of a child
from the home is not so disproportionate as to rise to the level of a liberty
violation within the meaning of the Due Process Clause. Additionally, no serious
physical injury was inflicted, and we have never upheld an excessive force claim
-16-
Compare
process claim where four plain clothes police officers were conducting
preventive rounds in search of drug traffickers and, with guns drawn,
approached a young couple sitting in a car and, when the driver hastily started the
engine and drove away, began shooting without warning and struck the driver in
the back with one bullet, damaging his spinal cord and rendering him a
paraplegic), with Bella , 24 F.3d 1251 (finding no due process violation where
police officers allegedly shot at and struck plaintiffs helicopter while plaintiff
unwillingly assisted in the escape of three inmates). The district court was
correct in dismissing this count.
c.
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Erikson v.
Cir. 2001). In Utah, malicious prosecution occurs when (1) defendants initiated
or procured the initiation of criminal proceedings against an innocent plaintiff;
(2) defendants did not have probable cause to initiate the prosecution; (3)
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defendants initiated the proceedings primarily for a purpose other than that of
bringing an offender to justice; and (4) the proceedings terminated in favor of the
accused. Hodges v. Gibson Prods. Co. , 811 P.2d 151, 156 (Utah 1991). Here,
Morrison did not initiate or procure the initiation of criminal proceedings.
Therefore, there is no Fourth Amendment claim for malicious prosecution.
11
Under Utah law, abuse of process claims require that legal proceedings be
instituted without probable cause, for the purpose of harassment or annoyance;
and it is usually said to require malice.
Union , 555 P.2d 877, 878 (Utah 1976). Utah law has also defined the tort as
using judicial resources to accomplish some improper purpose, such as
compelling its victim to do something which he would not otherwise be legally
obliged to do.
the criminal process is used for its intended purpose, the mere fact that it has
some other collateral effect does not render the action an abuse of process.
Id.
Utah recognizes a similar tort for civil proceedings, called wrongful use
of civil proceedings. Gilbert v. Ince, 981 P.2d 841, 845 (Utah 1999). Although
no Utah case is on point, most jurisdictions include quasi-criminal proceedings in
the latter tort. W. Page Keeton, et al., Prosser & Keeton on Torts 890 (5th ed.
1984). However, plaintiffs have not pled wrongful use of civil proceedings, and
they do not argue it in their briefs. Neither an opposing party nor this court is
under any obligation to craft legal theories for a plaintiff. See Abdelsamed v.
United States, 2002 WL 462027, at *1 (10th Cir. 2000); see also Fed. R. Civ. Pro.
8(a) (requiring a short and plain statement of the grounds for relief). We
therefore do not address a potential claim for wrongful use of civil proceedings.
11
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Even actions motivated purely by spite will not support a claim if process is
ultimately used only to accomplish the result for which it was created.
Prosser &
Keeton at 897.
Morrison stated in her deposition that she did not believe Rustys death was
imminent and that she commenced the removal in part to create a type of
controlled experiment to facilitate a diagnosis of MSBP. However, no inference
of an improper, ulterior purpose can be drawn from these statements. Rather,
these statements are wholly consistent with a concern for Rustys health and an
attempt to diagnose MSBP, even if Rustys imminent death was not expected.
Because there is no evidence from which an inference can be drawn that Morrison
used the judicial process to accomplish some improper purpose, we find that
plaintiffs have not sufficiently alleged an abuse of process violation.
2.
The Fourteenth Amendment Due Process Clause provides that no state shall
deprive any person of life, liberty, or property without due process of law. U.S.
C ONST . amend XIV, 1. Plaintiffs advance three theories in asserting a
deprivation of their liberty interests without due process of law.
a.
Plaintiffs contend that they were deprived of their liberty interest in their
family relationship without due process of law when Rusty was removed without
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Santosky
dealt only with the proper standard of review and arose within the context of a
permanent termination of parental rights. This circuit has applied
Santosky s
holding, however, to the temporary seizures of children and has held that notice
and a hearing are required before a child is removed except for extraordinary
situations where some valid governmental interest is at stake that justifies
postponing the hearing until after the event.
1377, 1385 (10th Cir. 1989) (quoting
& Reform , 431 U.S. 816, 848 (1977)). Valid governmental interests include
emergency circumstances which pose an immediate threat to the safety of a
child. Hollingsworth v. Hill , 110 F.3d 733, 739 (10th Cir. 1997). As the Second
Circuit has noted, the mere possibility of danger is not enough to justify a
removal without appropriate process.
from the home without notice or a hearing. Defendants did not even attempt to
obtain an ex parte order. We therefore find that plaintiffs have sufficiently
alleged a violation of their Fourteenth Amendment procedural due process rights.
b.
Plaintiffs claim that Rusty was deprived of his liberty interest in being safe
from harm when the state placed him in a foster home that was unprepared to
meet his needs and when he was given the wrong dose of methadone in the foster
home.
States must ensure reasonable care and safety to persons within their
custody. Youngberg v. Romeo , 457 U.S. 307, 324 (1982). This includes children
in foster care.
(10th Cir. 1992). There are two circumstances in which the state may be liable
for failing to ensure the safety of children in its care. First, the state may be
liable when a state actor shows deliberate indifference to serious medical needs
of a child who is in state custody.
(10th Cir. 1985). Second, a state may be liable when state actors place children
in a foster home or institution that they know or suspect to be dangerous to the
children, if harm actually occurs.
Id. at 893.
12
knew that the foster home in which Rusty was placed was not equipped to care for
him. In support of this assertion, plaintiffs offer deposition testimony that the
foster mother could not care for Rusty, that defendants had had a similar problem
with children once before, and that Morrison was aware that Rusty was suffering
and did nothing. However, a more thorough examination of the record reveals
that the foster parents simply indicated that they would not be able to care for
Rusty on a long-term basis, and that a child in a similar situation had been placed
in a nursing home.
13
c.
Plaintiffs allege that the removal of Rusty and his placement in state care
violated Connie and James Roskas rights to direct their sons medical care. In
Plaintiffs do not name the foster parents as defendants, nor do they allege
that any named defendant was involved in determining the methadone levels that
Rusty received. Plaintiffs allegations that defendants ignored Dr. Goochs
recommendation that Rusty remain with his family as part of his rehabilitation do
not rise to the level of deliberate indifference.
12
Plaintiffs alleged in their initial pleadings that Morrison was aware that
Rusty was suffering in foster care. This could potentially qualify as deliberate
indifference. However, plaintiffs do not mention this in their briefs on appeal,
and they direct us to no citation in the record in support of this contention.
Without a specific reference, we will not search the record in an effort to
determine whether there exists dormant evidence which might require submission
of the case to a jury. Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th
Cir. 1995) (citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)
(Judges are not like pigs, hunting for truffles buried in briefs.)).
13
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not refer to a
14
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3.
Conclusion
Having decided that the plaintiffs have adequately alleged that they
suffered constitutional violations when the social workers entered their house
without a warrant (Count 1), when they seized Rusty without a warrant (Count 3),
and when they removed him without notice and a hearing (Count 5), we now
consider whether the law was clearly established at the time the alleged violations
occurred.
C.
(quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). Concerning the
clearly established law requirement, the contours of the right must be
sufficiently clear such that an objectively reasonable officer would understand
that what she is doing violates that right.
639-40 (1987). If the law was clearly established, the immunity defense
ordinarily should fail, since a reasonably competent public official should know
the law governing his conduct.
added). 15
Thus, the touchstone of our inquiry is whether the officers [were] on
notice [that] their conduct [was] unlawful.
206). Although the best indicium of fair notice is whether the law was clearly
established at the time of the constitutional violation,
The Supreme Court has noted the analogue in criminal law: the void-forvagueness doctrine. [T]he qualified immunity test is simply the adaptation of the
fair warning standard to give officials (and, ultimately, governments) the same
protection from civil liability and its consequences that individuals have
traditionally possessed in the face of vague criminal statutes. Hope, 122 S.Ct. at
2515 n.10.
15
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F.3d 1254, 1259 (10th Cir. 2002). Although earlier cases involving
fundamentally similar facts can provide especially strong support for a
conclusion that the law is clearly established, they are not necessary to such a
finding. Hope , 122 S.Ct. at 2516.
a.
16
(1972) ([P]hysical entry into the home is the chief evil against which the . . .
Fourth Amendment is directed . . . .). Searches conducted without a warrant are
per se unreasonable under the Fourth Amendment subject only to a few
specifically established and well-delineated exceptions.
389 U.S. 347, 357 (1967) (footnotes omitted)
neutral and detached magistrate between the state and the citizenry, subject to
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Johnson v. United
States , 333 U.S. 10, 13-14 (1948), has become a cardinal principle of Fourth
Amendment jurisprudence,
17
Further, the only situation in which the Supreme Court has extended the special
needs doctrine to an individuals home occurred in
was a probationer.
U.S. 523, 540 (1967) (holding that a warrant was needed to perform an
administrative search upon private property). Consistent with these principles, in
Franz v. Lytle , we held that police officers could not enter a house to investigate
potential child abuse without a warrant. 997 F.2d 784, 791-92 (10th Cir. 1993);
cf. Calabretta v. Floyd , 189 F.3d 808, 817 (9 th Cir. 1999) (denying qualified
immunity on similar facts);
, 891 F.2d
dicta , that
At least two cases involving the entry of social workers or police officers
into a home to inspect or remove a child have upheld the warrant requirement.
Good v. Dauphin County Soc. Servs. , 891 F.2d 1087, 1093-94 (3d Cir. 1989);
Calabretta v. Floyd , 189 F.3d 808, 813 (9th Cir. 1999) (decided after May 1999).
17
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officers.
18
19
20
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21
22
(1999).
Nevertheless, we cannot say that, in light of these cases, a reasonable state
actor could conclude that the Fourth Amendment allowed a warrantless home
entry and seizure of a child absent something approaching probable cause
23
to
(...continued)
(citation omitted).
20
In Snell, we noted that the circuits are split on the scope of a social
workers power to act without a warrant. 920 F.2d at 697. Our broad language
notwithstanding, the circuits are split over the power of a social worker to inspect
a child without a warrant, not over the power to enter a home without a warrant
thus implicating the strong constitutional right against unreasonable intrusions
into the home and remove a child without a warrant thus implicating the
parental right to keep the family together.
21
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24
was the reason for his particularly troubling and persistent condition
of being
25
We realize that the district court made these findings in the context of
determining whether defendants complied with Utah Code Ann. 78-3a-301.
Nevertheless, section 78-3a-301s substantial cause requirement is sufficiently
similar to the standard articulated herein for the district courts findings to
support our conclusion.
25
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and seizure did not violate clearly established law under the Fourth Amendment
as it stood on May 28, 1999.
b.
26
no process
ex parte
Hollingsworth ,
110 F.3d at 739, in this case, Rustys health and safety were not in immediate
danger. Thus, regarding plaintiffs claim under the Fourteenth Amendment,
clearly established law plainly put defendants on notice that their conduct violated
the Constitution.
c.
Summary
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objective legal
reasonableness of the [state actors] action[s], assessed in light of the legal rules
that were clearly established at the time it was taken.
639 (emphasis added) (citations omitted). Once the district court determines that
the right at issue was clearly established, it becomes defendants burden to
prove that her conduct was nonetheless objectively reasonable.
plainly
Id. at 341.
At the same time, where the right is clearly established, a defendant should
only rarely be able to succeed with a qualified immunity defense.
v. Wyoming Department of Environmental Quality
Cir. 1990).
27
prevented from knowing that his actions were unconstitutional that he should
not be imputed with knowledge of a clearly established right.
28
Id.
28
a.
Reliance on a statute
29
See Wilson , 526 U.S. at 617; Lederman v. United States , 291 F.3d 36, 47 (D.C.
Cir. 2002); Grossman v. City of Portland
28
(...continued)
Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) (citation
omitted).
As the Ninth Circuit noted, when Chief Justice Warren first articulated
this principle, it was in the context of the subjective test that preceded Harlow.
Grossman, 33 F.3d at 1209 (citing Pierson v. Ray, 386 U.S. 547 (1967)). The
court, however, went on to note the principles continuing viability:
29
-35-
1994) (citing cases); Malachowski v. City of Keene , 787 F.2d 704, 713-14 (1st
Cir. 1986); see generally 1B M ARTIN A. S CHWARTZ & J OHN E. K IRKLIN , S ECTION
1983 L ITIGATION : C LAIMS AND D EFENSES 9.19 (1997 & Supp. 2003). Of course,
an officers reliance on an authorizing statute does not render the conduct per se
reasonable.
30
Cf. Malley , 475 U.S. at 345-46 (fact that officer applied for a
warrant based on facts he believed to be true does not render conduct per se
objectively reasonable). Rather, the existence of a statute or ordinance
authorizing particular conduct is a factor which militates in favor of the
conclusion that a reasonable official would find that conduct constitutional.
Grossman , 33 F.3d at 1209.
In this case, the district court concluded that defendants were entitled to
qualified immunity, based on defendants reliance on Utah Code Ann. 78-3a301. We disagree. Section 78-3a-301 does not authorize
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the effect of Utah Code Ann. 62A-4a-202.1 and 62A-4a-202.2 on the qualified
immunity analysis in this case. Section 62A-4a-202.2 provides only for
post -
Cir. 2000). Second, in light of the nature of the inquiry, it would be impossible to
consider the question on the record before us.
On this latter point, we make the following observations. First, the
presence of a statute is
established. Cf. V-1 Oil , 902 F.2d at 1488 n.5 (recognizing that we should not
refer to legal advice the defendant received when we decide whether or not the
governing law was clearly established). Rather, a state officers reliance on a
statute is one factor to consider in determining whether the officers actions were
objectively reasonable,
31
(3) whether
the statute has fallen into desuetude; 32 and (4) whether the officer could have
reasonably concluded that the statute was constitutional.
33
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relied solely on Utah Code Ann. 78-3a-301. On remand, the district court may
consider the effect of Utah Code Ann.
Advice of counsel
include: (1) how unequivocal and specific the advice was; (2) how complete the
information provided to the attorney giving the advice was; (3) the prominence
and competence of the attorney; and (4) the time between the dispersal of the
advice and the action taken.
Id.
deprivation procedures.
35
determine whether the district court was correct in concluding that Petersens
advice related specifically to the conduct in question:
36
home without any pre-deprivation procedures. Finally, although the district court
concluded that the advice was specifically tailored to the facts giving rise to this
Although defendants now claim that Petersons advice was also based on
Utah Code 62A-4a-202.1 and 62A-4a-202.2 , again, we think it best to allow
the district court to consider this question in the first instance.
35
36
controversy,
37
neither the district court opinion nor the record indicate the
underscore the defendants motive to protect the child . . . does not vitiate
plaintiffs [constitutional] rights.
of the damages, if any, that his actions justify. 997 F.2d at 793.
This case is AFFIRMED in part, REVERSED in part, and REMANDED for
further proceedings consistent with this opinion.
37